An Ordinance to confer powers for the purpose of constructing a tunnel and a road to connect Discovery Bay in Lantau Island and Siu Ho Wan in North Lantau of that Island (subject to the limitations contained in the Ordinance), to provide for the operation and the maintenance of the tunnel and the road, to permit the use of the tunnel and the road for the passage of vehicular traffic (subject to any limitations contained in the Ordinance), to empower the charging of tolls or fees for such use, to provide for the payment of royalties in respect of such tolls or fees and matters ancillary to or connected with those purposes. [13 June 1997] (Originally 60 of 1997) Cap 520 s 1 Short title PART I PRELIMINARY This Ordinance may be cited as the Discovery Bay Tunnel Link Ordinance. Cap 520 s 2 Interpretation (1) In this Ordinance, unless the context otherwise requires- "the Commissioner" means the Commissioner for Transport; "the Company" (公司) means- (a) the company known as the "Discovery Bay Road Tunnel Company Limited", in English and "愉景湾隧道有限公司", in Chinese; or (b) in the event of a disposal under section 11(1), the person to whom the powers or rights are disposed;"construction works" (建造工程) means the works carried out by the Company or which have to be so carried out for the purpose of constructing the structure of the Tunnel Link and structures associated with or accessory to it and any works ancillary or incidental to such works but does not include the tunnel facilities; "dangerous goods" (危险品) has the meaning assigned to it by section 2 of the Dangerous Goods Ordinance (Cap. 295); "permitted vehicle" (获准许车辆) means any vehicle or a vehicle of a class or description for the passage of which the Tunnel Link may be used for the time being pursuant to a permission under section 23(3); "the Plan" (图则) means- (a) the plan numbered ISM 975 signed by the Director of Lands and deposited in the Land Registry; or (b) where appropriate, any other plan deposited under section 3(3);"Secretary" (局长) means the Secretary for the Environment, Transport and Works; (Replaced L.N. 106 of 2002) "specified vehicle" (指明车辆) means a vehicle of a class or description determined under section 23(1); "the tunnel" (隧道) means the completed tunnel, namely the structure- (a) between the 2 portals located at Discovery Bay and Siu Ho Wan respectively; (b) consisting of a single conduit with 2 lanes for traffic; and (c) the alignment of which is shown on the Plan;"tunnel area" (隧道区) means the area- (a) which is delineated and marked as "tunnel area" and "隧道区"; and (b) the location, extent and boundaries of which are shown,on the Plan; "tunnel facilities" (隧道设施) means all electrical and mechanical installations in the tunnel area which are necessary for the safe and orderly passage of vehicles through the Tunnel Link and which are not civil engineering or structural works; "the Tunnel Link" (隧道及连接道路) means the structure comprising the tunnel and the road within the tunnel area connecting the tunnel to Discovery Bay and Siu Ho Wan respectively; "tunnel officer" (隧道人员) means a person authorized by the Company to act in connection with the control, restriction, prohibition and safety of traffic in the tunnel area; "unleased area" (未批租区域) means that part of the tunnel area which is delineated and marked as "unleased area" and "未批租区域" on the Plan and the location, extent and boundaries of which are shown on the Plan; "utility" (公用事业设施) means any electric power cable, telephone cable or other cable used in communication, any telecommunications apparatus, any pipe used for the supply of water, gas or oil, or for drainage or sewerage, together with any duct for such cable or pipe and apparatus or works ancillary to such cable, pipe, apparatus or duct. (2) For the avoidance of doubt it is declared that any reference to "tunnel area" or "unleased area" shall be construed as including, in particular, the parts of the Tunnel Link which are within that area. Cap 520 s 3 Variation of tunnel area (1) The Director of Lands may vary the boundaries of the tunnel area where he considers such variation is necessary. (2) Notwithstanding subsection (1), if the Company requests the Director of Lands to vary the tunnel area, the Director of Lands may vary the boundaries of the tunnel area, but with the consent of the Company, the Director of Highways, the Director of Planning and the Commissioner. (3) Where there is any variation under subsection (1) or (2), the Director of Lands shall prepare a plan on which- (a) the area which is to be the tunnel area for the purposes of this Ordinance is delineated and marked as "tunnel area" and "隧道区"; (b) the location, extent and boundaries of that area are shown,sign it, assign a number to it and certify it as having been prepared for the purposes of this Ordinance and deposit it in the Land Registry. (4) For the avoidance of doubt it is declared that, where more than one plan has been deposited under this section, any reference to "tunnel area" in this Ordinance shall be construed as a reference to the area shown as the "tunnel area" and "隧道区" on the plan last so deposited. Cap 520 s 4 Power to construct Tunnel Link Remarks: Amendments retroactively made - see 29 of 1998 s. 102 PART II POWERS TO CONSTRUCT TUNNEL LINK, LIMITATION OF POWERS AND THEIR EXPIRY, POWER TO CHARGE PREMIUM OR ROYALTY AND POWER TO CONNECT ROADS AND INSTALL UTILITIES (1) Subject to subsection (2), the Company may- (a) on the unleased area- (i) construct those parts of the tunnel and the road connecting it to Siu Ho Wan as are shown on the Plan to be within that area; (ii) construct or install- (A) any facilities or other works associated with or accessory to the Tunnel Link or necessary for its operation or maintenance (not being a building or other structure to be used as an administration building); and (B) any utility essential for the construction, operation or maintenance of the Tunnel Link; and(iii) carry out any work necessary for the operation, maintenance and repair of the Tunnel Link and other works, facilities or utilities referred to in subparagraph (ii);(b) permit the use of the whole of the Tunnel Link for the passage of specified vehicles and permitted vehicles; (c) charge, in accordance with section 24, tolls or fees for the use of the whole of the Tunnel Link for the purpose referred to in paragraph (b).(2) The Company shall not exercise the powers given under subsection (1), in relation to the unleased area or such part of it as may be specified by the Director of Lands for the purposes of this subsection, until the Director of Lands informs it in writing that it may do so. (3) Notwithstanding anything in subsection (1) or (2), and subject to any conditions specified by the Director of Lands, the Company may, for the purpose of preparing for the carrying out of the construction works, enter any land adjoining the tunnel area, if such land is Government land and is not leased. (Amended 29 of 1998 s. 102) (4) A fee of an amount determined by the Director of Lands may be charged from the Company in respect of the exercise of its powers under subsection (3). Cap 520 s 5 Limitation of powers to wayleave Section 4- (a) shall be construed as conferring on the Company a wayleave in respect of the unleased area for the purposes specified in subsection (1)(a) of that section; and (b) shall not operate to confer or be construed as conferring on the Company- (i) any title, right or interest in or over the unleased area other than the wayleave referred to in paragraph (a); or (ii) any title, right or interest in or over any other part of the tunnel area which it would not otherwise have. Cap 520 s 6 Premium or additional premium to be charged from Company (1) The Director of Lands may determine- (a) that a premium should be charged from the Company for the exercise of the powers given under section 4 in respect of the unleased area; and (b) having regard to any relaxation of the restriction on the use, within the meaning of section 7(6), of the Tunnel Link, that an additional premium should be charged from the Company in respect of the exercise of the powers referred to in paragraph (a).(2) Where the Director of Lands makes a determination under subsection (1)(a) or (b), he shall- (a) determine the amount of the premium or additional premium, as the case may be, payable by the Company; (b) determine when it must be paid and the manner of payment; and (c) notify the Company- (i) that he has determined that a premium or additional premium, as the case may be, is payable; and (ii) of the matters determined under paragraphs (a) and (b) in respect of that premium or additional premium.(3) The Company shall pay any premium or additional premium charged under this section in accordance with the relevant determination made under subsection (2). Cap 520 s 7 Royalty (1) Subject to subsection (2), the Company shall pay to the Government, for the duration of the powers given under section 4, a royalty at the rate of- (a) 1% of the operating receipts for a period of 5 years commencing from the operating date; and (b) thereafter, 2.5% of the operating receipts, instead of at the rate specified in paragraph (a).(2) If the restriction on the use of the Tunnel Link is relaxed, the Financial Secretary may require the Company to pay to the Government, commencing from the date of relaxation and for the duration of the powers given under section 4, a royalty, instead of at the rate specified in subsection (1), as follows- (a) at the rate of 5% of the operating receipts; and (b) in addition- (i) for a period of 5 years following the date of relaxation, at the rate of 15% of the net operating receipts in excess of the projected net operating receipts; and (ii) thereafter, instead of at the rate specified in subparagraph (i), at the rate of 30% of the net operating receipts in excess of the projected net operating receipts.(3) The payment of royalty shall be due in respect of each period of- (a) 6 months or part thereof, in the case of the royalty payable under subsections (1) and (2)(a); (b) 12 months or part thereof, in the case of any royalty payable under subsection (2)(b)(i) and (ii),during which the powers given under section 4 are effective, commencing from the operating date or the date of relaxation, as may be appropriate, and shall be paid within 60 days of the end of each such period. (4) The acceptance by the Government of any sum tendered by the Company in accordance with this section shall not prevent the Government from claiming a further sum in respect of the same year or any adjustment appearing to be due or necessary on any subsequent examination of the books and accounts and other material furnished by the Company under section 22. (5) The payment by the Company of any sum in accordance with this section shall not prevent the Company from claiming a refund in respect of any overpayment made by the Company and established to the satisfaction of the Financial Secretary. (6) If, the Commissioner- (a) exercises his power under section 23(1) so as to add to the class or description of vehicles for the passage of which the Tunnel Link may be used pursuant to the first notification under section 23(2) after the commencement of this Ordinance; and (b) determines, with the agreement of the Director of Lands, that such exercise constitutes, for the purposes of subsection (2) and section 6(1)(b), a relaxation of the restriction on the use of the Tunnel Link,it shall be treated as such a relaxation for the purposes of that subsection and section. (7) In this section- "date of relaxation" (放宽日期) means the date on which a determination under section 23(1), in respect of which the Commissioner (with the agreement of the Director of Lands) has made a determination described in subsection (6)(b), comes into effect; "net operating receipts" (净经营收入) means the operating receipts reduced by the royalty payable in respect of those receipts under subsection (1) or (2)(a), as the case may be; "operating date" (开始经营日期) means the date determined under section 18(1); "operating receipts" (经营收入) means the total gross sums received by the Company in respect of the tolls and fees charged under section 24; "projected net operating receipts" (预计净经营收入) means the projected operating receipts prepared by the Company and accepted by the Commissioner for each year during which the Tunnel Link is operated by the Company under this Ordinance reduced by the royalty under subsection (1) or (2)(a), as the case may be, which would be payable in that year upon those receipts. Cap 520 s 8 Powers of Financial Secretary in relation to royalty For the purpose of ascertaining the royalty under section 7, the Company shall permit the Financial Secretary, or any person authorized in writing by him, to inspect at all reasonable times all books of account, vouchers and receipts and all other records of the Company (including all records maintained by the Company pursuant to section 28(1)(g)) and to make extracts from any such documents and to take away such documents for further examination. Cap 520 s 9 Connection of roads by Government (1) The Government may connect any other road to any part of the approach road within the unleased area. (2) The Director of Lands or the Director of Highways may, for the purposes of subsection (1)- (a) require the Company to vary the alignment of the approach road or any part of it; and (b) carry out any work (including the varying of the alignment of the approach road or any part of it) that he considers necessary.(3) The cost of any connection under subsection (1) or variation or works under subsection (2) shall be borne by the Government. (4) In this section "approach road" (引道) means the road within the tunnel area connecting the tunnel to Siu Ho Wan. (5) The Government shall use its best endeavours to ensure that the exercise of the Company's powers under section 4 is not affected by the exercise of any power under this section. Cap 520 s 10 Utilities (1) For the avoidance of doubt, but subject to subsection (3), it is declared that nothing in this Ordinance shall be construed as affecting- (a) any right of the Government to install, maintain or repair any utility on any part of the unleased area or to permit any other person to do so; or (b) any existing right of or permission given to any other person to install any utility in the unleased area.(2) No person shall install any utility (not being a utility referred to in section 4(1)(a)(ii)(B)) in the unleased area without the permission of the Director of Lands. (3) The Director of Lands shall, before giving permission to a person (not being the Company) for the purposes of subsection (2), notify the Company of his intention to give such permission. (4) The Company- (a) may remove any utility which impedes the construction works and re-install it in another place that is suitable, with the approval of the Director of Lands and the consent of the owner of the utility concerned or the person in control of it; and (b) if any loss or damage is caused to any person (including the Government) by reason of anything done under paragraph (a), shall compensate that person for such loss or damage.(5) The Company shall bear the expenses, if any, in respect of a removal and re-installation under subsection (4), unless other arrangements are made between the Company and the owner of the utility or the person having the control of it. (6) The Company shall allow reasonable access to any utility in the tunnel area by the owner of or the person having the control of that utility. Cap 520 s 11 Assignment (1) The Company shall not dispose of or enter into an agreement for the disposal of any of its powers or rights under this Ordinance without the prior consent in writing of the Governor in Council. (2) Where any disposal is effected pursuant to the consent of the Governor in Council under subsection (1), the Secretary shall give notice in the Gazette of such disposal and the name and description of the person to whom the powers or rights were disposed. Cap 520 s 12 Expiry of powers (1) Subject to this Ordinance, the powers given to the Company under section 4 shall expire on 30 June 2047. (2) The Company may apply to the Governor in Council, in accordance with subsection (3), for an extension of the powers referred to in subsection (1). (3) Any application for the purposes of subsection (2) shall be in writing and submitted to the Director of Lands at least 18 months before the date specified in subsection (1). (4) Where the Director of Lands receives an application under subsection (3), he shall submit it to the Governor in Council. (5) On a submission under subsection (4), the Governor in Council may extend the powers referred to in subsection (1) for a period specified by him or refuse the application (in which case subsection (1) shall apply). Cap 520 s 13 Company to construct Tunnel Link at its own expense PART III CONSTRUCTION OF TUNNEL LINK The Company shall, at its own expense, carry out and complete the construction works and the installation of the tunnel facilities and bear the costs of the operation and maintenance of the Tunnel Link. Cap 520 s 14 Start of construction (1) Notwithstanding section 4(1) or (2), the Company shall not commence the construction works before such date as may be agreed between the Director of Lands and the Company for the commencement of the construction works. (2) The Director of Lands shall not agree on a date for the commencement of the construction works until the Company complies with section 15 and unless the estimated time for completion furnished to the Secretary under section 15(a)(ii) is acceptable to the Secretary and the Director of Lands. Cap 520 s 15 Company to furnish estimates, etc. The Company shall- (a) furnish to the Secretary- (i) detailed estimates as to the cost of the completion of the construction works and the installation of the tunnel facilities; (ii) a programme for carrying out the construction works and installing the tunnel facilities, being a programme which includes (in particular) information as to the estimated time, from the commencement of the construction works, to the completion of the construction works and the installation of facilities; and(b) establish to the satisfaction of the Secretary that sufficient funds to complete the works referred to in paragraph (a) are available to the Company. Cap 520 s 16 Failure to complete construction (1) After the Company commences the construction works, if it decides not to complete them, it shall notify the Director of Lands of such decision. (2) Where the Director of Lands receives a notification under subsection (1), he shall issue a direction stating that the Company has given notice that it has decided not to complete the construction works. (3) If after the Company commences the construction works, it fails to complete them and the installation of the tunnel facilities within 12 months of the estimated date for such completion or such longer period as the Director of Lands may specify and does not give an explanation to the satisfaction of the Director of Lands for such failure, the Director of Lands shall issue a direction stating that the Company has failed to complete the construction works within the required period. (4) Where a direction is issued under subsection (2) or (3), the powers given to the Company by or under section 4 shall cease with effect from a date specified for the purpose in the direction. (5) Where there is a cessation of powers under subsection (4), the Company shall, if the Director of Lands so requires, restore at its own expense, as far as it is practicable, that part of the unleased area on which there are construction works, to its original condition as soon as practicable. (6) Where the Company fails to comply with a requirement under subsection (5), or fails to comply with such a requirement to the satisfaction of the Director of Lands, the Director may effect such works as are necessary to restore the unleased area, as far as practicable, to its original condition. (7) The Director of Lands may recover from the Company all costs incurred in connection with any restoration of the unleased area under subsection (6). (8) In subsection (3), "estimated date for completion" (预计竣工日期) means a date determined by the Director of Lands on the basis of the estimated time for completion furnished under section 15(a)(ii). Cap 520 s 17 Operation of Tunnel Link PART IV OPERATION AND MAINTENANCE OF TUNNEL AREA AND RELATED MATTERS (1) The Company shall provide adequate and efficient personnel to the satisfaction of the Commissioner for the control of motor vehicles and persons in the tunnel area. (2) The design, construction and installation of the tunnel facilities shall be subject to the approval of the Director of Highways. (3) Without affecting the generality of section 19 and subsection (2), the Company shall- (a) install in the tunnel area a system of radio communication, being a system that is satisfactory to the Commissioner of Police and the Director of Fire Services; (b) if the Commissioner of Police or the Director of Fire Services so requires, effect any modifications (which may include upgrading or enhancement), specified by that Commissioner or Director, as may be appropriate, to the system referred to in paragraph (a); (c) install a system, for control and surveillance of traffic in the tunnel area, to the satisfaction of the Commissioner; (d) if the Commissioner so requires, effect any modifications (which may include upgrading or enhancement), specified by him, to the system referred to in paragraph (c).(4) The Company shall bear the expenses of the installation and the modification (if any) of any system referred to in subsection (3) and the responsibility (including expenses) for its maintenance. (5) The Company shall ensure that the Tunnel Link is not used for the passage of vehicular traffic (other than vehicles concerned with the construction works) until the date determined under section 18(1). (6) The obligations of the Company under this section are in addition to any requirements specified in regulations made under section 28. Cap 520 s 18 Opening of Tunnel Link (1) Where the Commissioner is satisfied that the Tunnel Link is ready for the passage of vehicular traffic, he shall- (a) determine a date for the commencement of its operation; and (b) notify in the Gazette the date determined under paragraph (a).(2) The date referred to in subsection (1) shall be the soonest practical date after the Director of Highways has issued a certificate to the Commissioner and the Company that in his opinion the Tunnel Link is in a condition fit for the passage of traffic. Cap 520 s 19 Maintenance and remedial work (1) The Company shall maintain the tunnel area and the tunnel facilities to the satisfaction of the Director of Highways. (2) Where the tunnel area or the tunnel facilities are not maintained to the satisfaction of the Director of Highways, the following applies- (a) the Director of Highways may, by a notice in writing served on the Company, require the Company to carry out, within such period as is specified in the notice, such work as specified by him (being work he considers necessary for the proper maintenance of the tunnel area and the tunnel facilities); (b) if in the opinion of the Director of Highways, public interest will be better served if the work referred to in paragraph (a) were to be carried out by him, he may carry out that work.(3) Where the Director of Highways intends to carry out any work for the purposes of subsection (2)(b), he shall give notice in writing of his intention to the Company. (4) On receiving a notice under subsection (3), the Company may, by notice in writing given to the Director of Highways within 14 days beginning on the date of the notice, object to the Director carrying out any work and in that notice shall specify the grounds for the objection. (5) Where the Director of Highways gives a notice under subsection (3)- (a) subject to paragraph (b), he shall not commence any work for the purposes of subsection (2)(b) until the period of 15 days beginning on the date of giving the notice has expired; (b) if he receives a notice of objection within the period referred to in paragraph (a), he shall consider the objections and determine whether to carry out the work himself or require the Company to do it, and act accordingly.(6) Where the Company does not comply with any requirement made under subsection (2)(a), the Director of Highways may carry out such work as he considers necessary for the proper maintenance of the tunnel area and the tunnel facilities. Cap 520 s 20 Remedial work in emergency (1) Where in the opinion of the Director of Highways, the tunnel area or any part of it- (a) has been rendered dangerous; or (b) is liable to become dangerous,and as a result, in his opinion an emergency has arisen or is likely to arise, he may carry out such remedial work as appears to him to be necessary. (2) Where it is not practicable to give notice to the Company of his intention to carry out any work under subsection (1), the Director of Highways may carry out such work without notice to the Company. Cap 520 s 21 Recovery of costs by Director of Highways and Commissioner (1) Where the Director of Highways carries out any work- (a) under section 19, he may recover from the Company the costs thereof; and (b) under section 20, he may recover the costs of that part of the work which in his opinion was necessary on account of the emergency or to avert an emergency, as may be appropriate.(2) The Commissioner and the Director of Highways may recover from the Company any costs incurred in connection with overseeing, in the course of performing their respective functions under this Ordinance, any activity related to the tunnel area or the Tunnel Link. Cap 520 s 22 Requirement to furnish information The Secretary may require the Company to furnish to him within such period as may be specified by him- (a) particulars relating to the number of motor vehicles using the Tunnel Link; and (b) particulars relating to the amount of tolls or fees collected by the Company. Cap 520 s 23 Specification of vehicles (1) The Commissioner may determine, for the purposes of this subsection, the classes or description of vehicles for the passage of which the Tunnel Link may be used. (2) The Commissioner shall notify in the Gazette the classes or description of vehicles determined under subsection (1). (3) Subject to subsection (4), the Commissioner may determine that the Tunnel Link may be used, in addition for the passage of specified vehicles, for the passage of any vehicle or vehicles of a class or description as are permitted by him for the purposes of this subsection, for such period as may be specified by him in relation to such permission. (4) The Commissioner may exercise his powers under subsection (3), only where it appears to him that it is necessary to do so due to the existence of a situation which he considers to be an emergency. (5) Where the Commissioner makes a determination under subsection (3), he shall, as soon as practicable, inform the Company of the determination and the particulars thereof and require the Company to permit the use of the Tunnel Link for the passage of the permitted vehicles. Cap 520 s 24 Use of Tunnel Link for passage of vehicles and tolls and fees therefor (1) This section applies in relation to the exercise of the power conferred by section 4(1)(c) to charge tolls or fees. (2) The Company shall not permit the use of the Tunnel Link for the passage of any vehicle other than a specified vehicle or a permitted vehicle. (3) The Company may charge different tolls or fees for different types of specified vehicles or permitted vehicles. (4) Where the Company proposes to charge a toll or fee for the use of the Tunnel Link, it shall furnish to the Secretary particulars as to the amounts of the proposed tolls or fees together with such information as the Secretary may require and in such manner as required by him. (5) The Company shall not charge in respect of the passage through the Tunnel Link of any specified vehicle or permitted vehicle, any toll or fee unless the Secretary has agreed, in relation to the type of specified vehicle or permitted vehicle concerned, to the toll or fee proposed by the Company. (6) The Company may, subject to subsection (8), vary any toll or fee charged under this section, not more than once in every 12 months. (7) Where the Company proposes to vary a toll or fee, it shall furnish to the Secretary particulars as to the amount of the proposed variation together with such other information as the Secretary may require and in such manner as required by him. (8) The Company shall not vary a toll or fee unless the Secretary has agreed to the amount of the variation. (9) Where the Secretary and the Company agree as to the amount of a toll or fee or a variation in a toll or fee under this section, not being a toll or fee or a variation agreed in relation to permitted vehicles, the Secretary shall notify in the Gazette the amount of the toll or fee or the toll or fee as varied, as may be appropriate. (10) Any toll or fee agreed to under this section is the maximum toll or fee which may be charged for the time being in respect of the whole of the Tunnel Link. (11) Notwithstanding section 4(1)(c) or subsection (3), the Company shall not- (a) charge a toll or fee in respect of a vehicle carrying persons who are employed by or in the service of the Government and who are performing any duty in the tunnel area pursuant to this Ordinance or in relation to an emergency or the enforcement of the law; or (b) refuse or prevent access to or passage through the Tunnel Link by such a vehicle.(12) The Company shall not erect or install a toll booth or other structure to be used in the collection of tolls, unless the Commissioner has approved the location thereof. (13) The Company shall not install any system for the collection of tolls unless the Commissioner has approved its design and specification. (14) The Company shall, if the Commissioner so requires, effect, at its expense, any modifications (which may include upgrading or enhancement), specified by him, to any system for the collection of tolls installed by the Company. Cap 520 s 25 Cessation of operation of Tunnel Link (1) If the Tunnel Link or any part of it remains closed for a continuous period exceeding 6 months due to the Company failing to carry out any work it is required to carry out under section 27(7) or failing to carry such works to the satisfaction of the Director of Highways or the Commissioner, as may be appropriate, the Director of Lands may issue a direction stating that the Company has failed to carry out remedial work necessary for the safety and maintenance of the tunnel area. (2) Where a direction is issued under subsection (1), the powers given to the Company by or under section 4 shall cease with effect from a date specified in the direction. Cap 520 s 26 Provision of alternate access and cessation of operation of Tunnel Link (1) If at any time during the operational period, due to the provision of other means of access between Discovery Bay and North Lantau, the Company is of the opinion that it is not useful to continue the operation of the Tunnel Link, the Company may apply to the Governor in Council for approval to cease the operation of the Tunnel Link for the time being. (2) Where the Governor in Council approves an application by the Company to cease operating the Tunnel Link, he may require the Company to take such steps as specified by him to prevent access by the public to the Tunnel Link. (3) The duty of the Company under section 19 to maintain the tunnel area to the satisfaction of the Director of Highways is not affected by any approval given under this section. (4) The Governor in Council may, with the consent of the Company or on application by the Company, withdraw any approval given under this section. (5) On a withdrawal under subsection (4), the Company shall resume the operation of the Tunnel Link. (6) Where the Company ceases the operation of the Tunnel Link under this section and it is not resumed within the period of 24 months beginning on such cessation, the powers given to the Company by or under section 4 shall cease on the expiry of that period. (7) In subsection (1) "operational period" (经营期间) means the period beginning on the date determined under section 18(1) and ending on- (a) the date specified in section 12(1); or (b) where appropriate, the expiry of the period for which the powers under section 4 are extended under section 12(5). Cap 520 s 27 Closure (1) The Tunnel Link shall not be closed for the passage of vehicles for which it may be used under this Ordinance, other than in the circumstances specified in this section. (2) A person specified in subsection (3) may require the Company to close the Tunnel Link or the Company may close the Tunnel Link if in the opinion of that person or the Company, as the case may be, such closure is necessary due to an emergency. (3) The persons referred to in subsection (2) are the Commissioner of Police, the Director of Fire Services, the Commissioner and the Director of Highways. (4) Where- (a) the Company closes the Tunnel Link under subsection (2), it shall inform the persons specified in subsection (3); and (b) any person specified in subsection (3) requires the Company to close the Tunnel Link, he shall inform the other persons specified in that section,as soon as practicable. (5) Where the Tunnel Link is closed under subsection (2)- (a) by the Company pursuant to a requirement under that subsection, the person who makes the requirement shall, as soon as he is satisfied that it is safe to reopen the Tunnel Link, require the Company to reopen it; and (b) by the Company, the Company shall reopen the Tunnel Link as soon as it is satisfied that it is safe to do so.(6) The Company- (a) may close the tunnel area or any part of it for maintenance, safety or operational reasons; and (b) shall inform the Commissioner in writing at least 14 days before the proposed date for the closure, of the reasons for such closure and the proposed date for reopening it.(7) Where it appears either to the Director of Highways or the Commissioner that the Tunnel Link should be closed in the interests of safety or for maintenance, the Director or the Commissioner, as the case may be, shall require the Company by notice in writing to close it immediately and to carry out, at its own expense, such remedial work as is specified in the notice as soon as practicable. (8) Where the Tunnel Link is closed pursuant to subsection (7), the Company shall not reopen it until the Director of Highways or the Commissioner, as the case may be, is satisfied that the work has been carried out and it is safe to reopen the Tunnel Link and notifies the Company accordingly. Cap 520 s 28 Regulations (1) The Secretary may make regulations for all or any of the following purposes- (a) to require- (i) the provision by the Company of traffic signs and road markings in the tunnel area and to provide for matters related thereto (including the classes or types of such signs or markings, their design and colour, placing, operation, maintenance, alteration and removal); (ii) the display by the Company, in a manner specified in or required under the regulations, of notices stating the tolls or fees payable for the use of the Tunnel Link;(b) to require the Company to take measures to prevent or control the carriage of dangerous goods through the Tunnel Link and, if he thinks it fit, to specify the measures to be so taken; (c) to provide for- (i) the powers of the personnel provided by the Company for the control, restriction and safety of traffic in the tunnel area; and (ii) the circumstances under and the extent to which police officers may take over the control and restriction of traffic in the tunnel area;(d) to specify requirements as to the installation, operation and maintenance by the Company of adequate, efficient, and safe facilities for the passage of motor vehicles through the Tunnel Link and the control and safety of motor vehicles and persons in the tunnel area; (e) without limiting the generality of paragraph (d), to require the provision by the Company of fire service installations and equipment within the tunnel area; (f) to specify requirements as to the provision by the Company of adequate and efficient personnel for the passage of motor vehicles through the Tunnel Link and the control and safety of motor vehicles and persons in the tunnel area; (g) to require the maintenance by the Company of such records for the purposes of section 22 or as may be specified in the regulations; (h) to specify requirements to be complied with by the Company for the purpose of maintaining air quality within the tunnel, and to specify, in relation to such gases as specified by him, levels to be maintained, to prevent the concentration of such gases; (i) to require the provision by the Company of a radio rebroadcasting system in the Tunnel Link; and (j) to provide for such other matters as the Secretary considers necessary or expedient to give effect to the regulations.(2) Without prejudice to any other provision in this Ordinance, regulations made under subsection (1) may provide that the provision of any facility or compliance with any requirement under the regulations shall be in a manner specified by or to the satisfaction of such authority as is specified in the regulations for such purpose. Cap 520 s 29 Powers of tunnel officers PART V POWERS OF COMPANY TO MAKE BYLAWS AND POWERS OF TUNNEL OFFICERS REGARDING TRAFFIC MATTERS (1) A tunnel officer may, in the tunnel area, take any action specified in subsection (3) for the purpose of- (a) regulating traffic; or (b) preventing the commission of an offence.(2) If a tunnel officer- (a) reasonably suspects that an offence has been committed; or (b) reasonably believes that a driver has been involved in an accident,he may, in the tunnel area, take any action specified in subsection (3). (3) The action a tunnel officer may take for the purposes of subsection (1) or (2) is as follows- (a) he may direct a driver to stop the vehicle or to proceed to any place in the tunnel area indicated by the tunnel officer and to stop there; (b) he may stop any vehicle which has entered the tunnel area or prevent any such vehicle from entering that area; (c) he may require a driver to produce his driving licence; (d) he may require a driver to furnish the name and address of the registered owner of the vehicle being driven by him where that information is within his knowledge; (e) he may require any person whom a tunnel officer reasonably believes to have witnessed any accident or the commission of an offence, to furnish to him his name and address; (f) he may detain, if necessary by the use of reasonable force, a driver, a vehicle or both until they are delivered into the custody of a police officer.(4) A person who obstructs a tunnel officer in the exercise of the powers conferred on him by or under this Ordinance or who fails to comply with a direction or requirement made under subsection (3) commits an offence. (5) A person who commits an offence under subsection (4) is liable to a fine at level 2. (6) The powers given to a tunnel officer under this section- (a) are without prejudice to section 63 of the Road Traffic Ordinance (Cap 374); and (b) are in addition to any powers conferred on a tunnel officer by regulations made under section 28.(7) In this section- (a) "driver" (司机) in relation to any motor vehicle, means any person who is in charge of or assisting in the control of such vehicle; (b) "driving licence" (驾驶执照) has the meaning assigned to it by section 2 of the Road Traffic Ordinance (Cap 374); (c) "registered owner" (登记车主) has the meaning assigned to it by section 2 of the Road Traffic Ordinance (Cap 374); (d) "offence" (罪行) means (other than in subsections (4) and (5)) an offence against the Road Traffic Ordinance (Cap 374) or under the bylaws made under section 30. Cap 520 s 30 Bylaws (1) The Company may make bylaws for all or any of the following purposes- (a) to provide for order and safety in the tunnel area and the prevention and abatement of nuisances in that area; (b) to provide for precautions as regards public health and safety in the tunnel area; (c) to provide for the control, regulation, restriction and safety of traffic in the tunnel area; (d) the prohibition or regulation otherwise of the use of lights, horns, sirens and other equipment in vehicles (not being vehicles in relation to which such use is necessary or appropriate) in the tunnel area; (e) to provide for the collection of tolls or fees in respect of the use of the Tunnel Link for the passage of vehicles and, subject to section 24(11), to prohibit the use of the Tunnel Link for such purpose without the payment of a toll or fee; (f) without affecting the generality of paragraph (e), to provide for the use of automatic toll collection facilities, issue and purchase of toll tickets or passes for the purpose of collection of tolls; (g) to provide, in relation to vehicles in the tunnel area, for the control of the manner of and loading them and the securing of loads; (h) subject to section 23, the regulation of the dimensions, weight and condition of vehicles that may use the tunnel area; (i) the escort of vehicles through the tunnel area; (j) the regulation of the speed of vehicles in the tunnel area; (k) the regulation and prevention of the carriage into or through the tunnel area of any offensive, noxious or dangerous goods; (l) to prohibit persons from using the Tunnel Link for the passage of vehicles which are not specified vehicles or permitted vehicles; (m) to control the conduct of persons within the tunnel area; (n) without limiting the generality of paragraph (m), to prohibit such conduct or acts as may be described in the bylaws; (o) to specify requirements to be complied with by persons having the control of animals, for the purpose of regulating or prohibiting the presence of animals within the tunnel area; (p) to provide for the towing away or removal of any vehicle or thing causing obstruction in the tunnel area and the imposition of charges in respect of any such towage or removal and of any storage, detention or service of such vehicle or thing; and (q) any other matter relating to the control, operation and management of the Tunnel Link and the tunnel area which it is expedient or necessary to provide for.(2) Bylaws made under this section shall be subject to the approval of the Legislative Council. (3) The Company shall cause printed copies of all bylaws made under this section to be kept at the registered office of the Company and to be available for sale at a reasonable price to the public. (4) Bylaws made under this section may provide that the contravention of any specified provision thereof shall be an offence and may provide penalties therefor not exceeding a fine at level 2. (5) Without prejudice to any Ordinance relating to the prosecution of criminal offences or to the powers of the Secretary for Justice in relation to the prosecution of criminal offences, prosecutions under any bylaw made under this section may be brought by the Company in the name of the Company. (Amended L.N. 362 of 1997) Cap 520 s 31 Proof of map In any proceedings- (a) a document purporting to be a copy of the Plan and certified by the Director of Lands shall be admissible as evidence of the extent and boundaries of the tunnel area; and (b) if the document referred to in paragraph (a) is produced it shall not be necessary to prove the signature of the Director of Lands or that the person who certified it was the Director of Lands on the date of signing. Cap 520 s 32 Exercise of powers, delegation and compliance PART VI GENERAL (1) Any person mentioned in subsection (2) may enter any part of the tunnel area for the purpose of performing his functions under this Ordinance. (2) Where a function, duty or power (other than the power to make regulations under section 28) is assigned, imposed or conferred by or under this Ordinance on a person being- (a) the Secretary; (b) the Commissioner; (c) the Director of Highways; (d) the Director of Lands; (e) the Commissioner of Police; or (f) the Director of Fire Services,that person may authorize in writing any other person he considers suitable to perform the function or duty or exercise the power. (3) The Company shall comply with any requirement in or made under or pursuant to this Ordinance. Cap 520 s 33 Advertising (1) The Company may, with the prior approval of the Commissioner in writing, use or permit the use of any part of the tunnel area for the purpose of advertising, on such terms and conditions (which may include terms or conditions relating to charges) as it may determine. (2) Part IX of the Public Health and Municipal Services Ordinance (Cap 132) shall not apply to the use of any part of the tunnel area for advertising purposes. (3) The Commissioner shall not give his approval under subsection (1), unless he is satisfied that the safety of persons using or employed in the tunnel area or its vicinity, and the passage of motor vehicles through the tunnel will not be adversely affected by such advertising. Cap 520 s 34 Applicability of other Ordinances Remarks: Amendments retroactively made - see 29 of 1998 s. 103 (1) Notwithstanding section 41 of the Buildings Ordinance (Cap 123), that Ordinance shall apply in relation to building works (within the meaning of the Buildings Ordinance (Cap 123) and including construction works) and the maintenance of civil engineering and structural works within the tunnel area. (2) Except where it is inconsistent with any regulations made under section 28 or bylaws made under section 30, the provisions of the Road Traffic Ordinance (Cap 374) applicable to private roads shall apply in relation to the Tunnel Link. (3) This Ordinance is without prejudice to the Roads (Works, Use and Compensation) Ordinance (Cap 370) and the Lands Resumption Ordinance (Cap 124) and shall not be construed as limiting the powers or duties provided for in those Ordinances. (Amended 29 of 1998 s. 103) (4) The tunnel area shall be a public place for the purposes of any law. Cap 520 s 35 Financial penalties (1) If the Company fails to comply with any requirement in or made under this Ordinance (whether contained in or made under the Ordinance itself or regulations under section 28) the Commissioner or the Director of Highways may, subject to subsection (2), and with the approval of the Governor in Council, impose a financial penalty on the Company, in accordance with this section. (2) A financial penalty shall not be imposed under subsection (1) unless the Commissioner or the Director of Highways, as may be appropriate, notifies the Company in writing of the failure and affords the Company a reasonable opportunity to comply with the requirement. (3) Where a financial penalty is imposed under this section, the Commissioner or the Director of Highways, as may be appropriate, shall serve a notice in writing on the Company, specifying the amount of the financial penalty and requiring the Company to pay it to the Government, within 30 days beginning on the date the notice is served on it. (4) Where a failure referred to in subsection (1) is- (a) capable of being remedied, the Commissioner or the Director of Highways may impose in respect of it, a financial penalty of an amount which shall not exceed $10000 and where the failure continues, a further penalty of an amount which shall not exceed $10000 for each day it so continues after the date the notice under subsection (3) is served; and (b) not capable of being remedied, the following applies- (i) the Commissioner or the Director of Highways may impose in respect of the failure a financial penalty of an amount which shall not exceed- (A) $20000 on the first occasion; (B) $50000 on the second occasion; and (C) $100000 on the third or subsequent occasion, on which a financial penalty is imposed on the Company;(ii) in determining, as regards a particular failure ("the relevant failure"), whether it is the first, second or third or a subsequent occasion on which a financial penalty is being imposed, only occasions, if any, on which a financial penalty has been imposed in respect of a failure of the same type as the relevant failure shall be taken into account.(5) The requirement of the approval of the Governor in Council referred to in subsection (1) does not apply in relation to the imposition of a further penalty under subsection (4)(a). (6) A financial penalty imposed under this section shall be recoverable as a debt due to the Government. Cap 520 s 36 Payment and recovery of money due to Government (1) Subject to sections 6 and 7(3), where the Company becomes liable to pay any amount to the Government or reimburse it for any amount paid by it, the Company shall pay or reimburse it, subject to the presentation of receipts or other appropriate evidence in support, within 30 days of a demand in writing being made in respect thereof. (2) Any amount due to the Government from the Company by way of premium, additional premium, royalty, further royalty, costs or otherwise under this Ordinance and which is unpaid shall be recoverable as a debt due to the Government. Cap 520 s 37 Cessation of rights and obligations (1) All rights and obligations of the Company under this Ordinance shall cease on- (a) the expiry of powers under section 12(1) or expiry of the period for which they are extended under that section as may be appropriate; (b) a cessation of powers under section 25(2) or 26(6); (c) the commencement of the voluntary winding up of the Company; (d) the making of a winding-up order in respect of the Company,whichever event first occurs. (2) On a cessation of the rights and obligations referred to in subsection (1), the Tunnel Link, the tunnel facilities and all machinery and equipment installed in the tunnel area (other than any utility within the tunnel area) shall vest in the Government. (3) Neither the Company nor any other person is entitled to any compensation in respect of any assets vested in the Government under subsection (2). (4) The vesting of the assets of the Company in the Government under this section shall not render the Government liable for any debts of the Company.
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